UPDATE: Judge blocks law that would have banned newly slated candidates from ballot

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The Sangamon County Complex is the venue for a legal challenge to a new state law that bars parties from placing candidates on the general election ballot if no candidate ran in the party’s primary. (Capitol News Illinois file photo)

A Sangamon County judge on Wednesday blocked the Illinois State Board of Elections from enforcing a new law that would have prevented certain General Assembly candidates who didn’t run in the March primary from getting on the November ballot.

The move doesn’t void the bill in its entirety, but rather blocks it only for this year’s general election for the 14 named plaintiffs in the case. 

Democrats who control the legislature quickly moved the measure from introduction to Gov. JB Pritzker’s desk last month, claiming banning the practice of post-primary “slating” – long used by both parties – was in service of empowering voters. It applies in races where no candidate ran for a seat in the party’s primary. 

Read more: Democrats muscle through changes to ballot access, advisory questions

But Republicans cried foul, alleging the majority party passed the law to protect its incumbents from GOP challengers. Four such candidates sued last month, with 10 others joining them last week, and after Judge Gail Noll’s order Wednesday, they will appear on the November ballot – if they survive the normal process of challenges to their nominating petitions. 

“The General Assembly could make the revisions effective for the next election, rather than in the midst of the current election,” Noll wrote in her 12-page order. “Changing the rules relating to ballot access in the midst of an election cycle removes certainty from the election process and is not necessary to achieve the legislation’s proffered goal.”

Noll echoed the plaintiffs’ arguments from a Monday hearing, in which their attorney stressed that they weren’t taking a position over the constitutionality of the law eliminating the slating process for candidates to the General Assembly. 

Rather, Noll said, she sided with the candidates’ contention that the law’s application during the current election cycle violated their constitutional rights because it “impermissibly burdens their right to vote and to have their names placed on the November ballot.”

The plaintiffs were represented by the Liberty Justice Center, a libertarian outfit behind lawsuits intervening in state law and politics – including one that ultimately resulted in the U.S. Supreme Court striking down “fair share” union dues in 2018. In a statement Wednesday, LJC attorney Jeffrey Schwab applauded Noll’s ruling.

“The General Assembly can change the rules for elections, but they can’t do it in the middle of the game to keep challengers off the ballot,” he said. “We are proud to stand up for these candidates and against yet another scheme to suppress competition in Illinois elections.”

Neither the attorney general’s office nor attorneys for House Speaker Emanuel “Chris” Welch, who intervened in the lawsuit in favor of the law, immediately responded to a request for comment as to whether they would appeal the ruling.

Read more: Judge considering whether slated candidates can appear on November ballot

Though Wednesday’s ruling was aimed at the state Board of Elections, it won’t change what the board was already doing, as elections officials continued to collect nominating petitions from prospective candidates despite Pritzker signing the law on May 3.

Monday’s hearing coincided with the June 3 deadline for slated candidates to submit the requisite signatures to get on the ballot – 75 days after the March 19 primary as prescribed by state law. As of 5 p.m. on Monday, 16 candidates, all Republicans, filed to run in the November election via the slating process.

Objections to those petitions are due at the close of business on Monday, June 10. As of Wednesday afternoon, however, no objections had been filed.

Fourteen of the 16 candidates filed were plaintiffs in the suit, including one who filed his nominating petitions to the board of elections just minutes after the governor’s signature on the law last month. 

The only candidate who turned in signatures to get on the ballot before May 3 was Jay Keeven of Edwardsville, who is challenging Democratic Rep. Katie Stuart, also of Edwardsville. He was not party to the lawsuit.

Without naming him, Noll pointed out that the law would “arbitrarily treat” Keeven differently than the other 15 candidates. Even if she didn’t rule on the merits of the candidates’ voting rights being violated, Noll wrote, the law’s application in the middle of the current election cycle is still discriminatory because it “does not apply the same rules to all potential candidates.”

PREVIOUS STORY

A Sangamon County judge is weighing whether to block a new state law that bans the long-practiced tradition of political parties slating candidates for a general election after sitting out of a primary race.

Democrats who control the General Assembly pushed the measure through the legislative process and Gov. JB Pritzker signed it into law in a matter of days last month, arguing that slating is unfair to voters who didn’t get a say in a primary contest. Several would-be Republican candidates then sued over the law, claiming it’s unfair to ban the practice in the middle of an election cycle.

Read more: Democrats muscle through changes to ballot access, advisory questions

Now, the dispute is in the hands of Sangamon County Judge Gail Noll, who heard two hours of arguments over the case on Monday, which was also the last day slated candidates were able to file their nominating petitions under the old law. Noll last week ordered the State Board of Elections to keep accepting the petitions while the case plays out, which the board had already been doing.

During Monday’s hearing, attorney Jeffrey Schwab said his clients – four Republican candidates from Chicago and its suburbs – weren’t arguing that the law itself is unconstitutional, but that its application to the current election cycle is.

“It’s unreasonable to change the law in the middle of the game,” he said. “It’s, of course, extremely unreasonable for them to have known that a law was going to be passed and enacted and go into effect before the timeline that they had to submit their petitions today.”

When the petition filing window closed at 5 p.m. Monday, 16 candidates filed petitions to get on the November ballot, including the four plaintiffs in the case. All 16 were Republicans.

Though the lawsuit was only filed against the Board of Elections and Attorney General Kwame Raoul, House Speaker Emanuel “Chris” Welch sought to intervene in the case. Democratic election law attorney Mike Kasper argued on Welch’s behalf that the law was a boon to democracy because candidates used the slating process to escape a tough primary battle.

“It not only encourages and empowers independent and third-party candidates to gain ballot access, it eliminates the party bosses, as they’ve been called, from this process,” Kasper, a longtime lawyer for former House Speaker Michael Madigan, said during Monday’s hearing over videoconference.

Schwab, who has sued the state numerous times in his career as an attorney for the Chicago-based libertarian-leaning Liberty Justice Center, hit back at Kasper’s claims.

“It’s very weird to say that it somehow empowers voters by giving them less choice – giving them no Republican candidate in the election,” he said.

The four plaintiffs in the suit were all designated by their local parties in March and April, but none of them filed their nominating petitions before the law, which only applies to General Assembly races, went into effect.

One of the four – Republican Daniel Behr of Northbrook – claimed he attempted to file petitions the afternoon before Pritzker signed the bill into law, but he alleged the Board of Elections Springfield office closed at 4:30 p.m. that day.

Board spokesperson Matt Dietrich, however, said that seemed unlikely because “during filing periods we always have somebody there (collecting petitions) until 5.”

Behr ended up filing them just six minutes after the governor’s signature was recorded on the bill the morning of May 3.

Monday’s arguments referenced another GOP candidate – Jay Keeven of Edwardsville – who was able to turn in his nominating petitions the day before Pritzker signed the law. Keeven is challenging Democratic Rep. Katie Stuart, also of Edwardsville.

Judge Noll said she would have a written decision “in the next couple of days.” Meanwhile, Dietrich said the Board of Elections is proceeding as usual with the one-week period where candidates’ nominating petitions are challenged, which will conclude at 5 p.m. next Monday, June 10.

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